Bill S-5 Receives Royal Assent: Canada’s Cornerstone Environmental Law Modernized
On June 13th, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, received Royal Assent. First introduced in February 2022, the Bill is notable as it has brought forth the first set of comprehensive and modernized amendments to the Canadian Environmental Protection Act (CEPA) since its enactment in 1999.
An Overview
With an expressed focus on the right to a healthy environment and strengthening Canada’s chemical management regime, the Bill continues the effort of Bill C-28, which was initially introduced in the 43rd Parliament in April 2021, however died on the Order Paper when Parliament was dissolved in August 2021. Despite the inability of C-28 to proceed, the reinvigorated Senate originated Bill S-5 was able to successfully pass through the various stages of readings and committee considerations, and received Royal Assent immediately following the government motion to agree to the House of Commons amendments were adopted by the Senate with a totaled vote of 59 Yeas and 19 Nays.
Key Themes
The modernization goals were guided by the following key themes:
- A right to a healthy environment;
- Protecting vulnerable populations;
- Assessing real-life exposures;
- A new Plan of Chemicals Management Priorities;
- Supporting the Shift to Safer Chemicals;
- Increasing transparency in decision-making;
- A stronger regime for toxic substances that pose the highest risk;
- Risk assessments for new living organisms under Part 6 of the Act;
- Reducing reliance on animal testing; and
- Changes to the Food and Drugs Act to strengthen the environmental risk assessment and risk management of drugs.
Overview of the Notable Amendments
As one of Canada’s core environmental laws that now recognizes the right to a healthy environment, S-5 puts forth the following key amendments to CEPA:
Environmental Rights
Under the recognition of the right to a healthy environment, the Act requires that the Government of Canada protect the right and uphold its related principles. In order to strengthen the checks and balances around this right, it is now required that within 2 years of the amendments coming into force, the Ministers must develop and publish an implementation framework and annual report. To guide this effort, the Ministers will conduct research, outreach, studies, and activity monitoring, as well as give those interested the opportunity to participate in the development of the framework. As Indigenous reconciliation is a key consideration, an annual report will be drafted on the operation of CEPA in respect to Aboriginal peoples in Canada.
Strengthening Chemicals Management
As one of the most substantial sections to face amendments, various new terms and initiatives around chemical management were released.
To bolster risk assessments around chemicals, within two years the Ministers must now develop, consult on, and publish a Plan of Chemicals Management Priorities with timelines. This Plan is set to be multi-year, integrated, and provide an assessment of the substances already in commerce in Canada. To ensure that the Plan is comprehensive and relevant, the Ministers will consult with interested stakeholders, partners, and the public, as well as be required to review the Plan within eight years following publication. Furthermore, in order to best assess and manage substances, a risk-based approach that considers vulnerable populations will be taken. As part of this approach, the Ministers will be responsible to report annually to parliament, repeal various clauses of the spend categorization provisions and dated Priority Substance List, and add a new provision that will allow any person to request that the Ministers assess a substance to determine whether it is toxic or becoming toxic.
As under the public accountability framework, sections 77 and 91-92 will now apply to all risk assessments of substances to determine whether they are “toxic” under CEPA. If a substance is determined toxic, the Ministers will have four response measures of action to propose. To provide further accountability, if a draft assessment conclusion has not been finalized within 2 years, the Ministers must publish a statement in the Environmental Registry and the timelines for additional planned risk management instruments must be communicated.
To target specific substances of concern, a watch list will be published and maintained, and prohibitions will be set for substances considered toxic and of the highest risk. Furthermore, a new priority will be given to prohibitions under amendments to section 93, in which the permitting powers now allow the Minister to require the proponents to first demonstrate that the prohibited activity can be undertaken safely and that there are no feasible alternatives.
New Substances, Animate Products of Biotechnology and Significant New Activities
In addition to the Ministers’ ability to vary elements of a significant activity notice or order beyond the significant new activity itself, the instilled amendments now require that the Minister published a notice of waived information requirements. These amendments relate to the Food and Drug Act (FDA), as through the strengthened risk assessment and management, the duplicate notification process between the FDA and CEPA will be removed and streamlined.
Information Gathering
In order to bolster public awareness and transparency, the notices and documents made publicly available by the Ministers under CEPA must be published in the Environmental Registry in a publicly accessible, searchable, and electronic form. This is accompanied by amendments to the Ministers’ powers to compel information and updates to confidentiality requests.
For a comprehensive and detailed list of the amendments, please refer to the Bill – HERE.
Going Forward
The Government of Canada will be busy working on implementing the amendments to the modernized Act. This work will notably include engagements with Canadians on the development of an implementation framework on the right to a healthy environment under CEPA and a Plan of Chemicals Management Priorities. As implementation progresses, the Ministers surely will be engaged to ensure that they comply with the increased reporting and monitoring initiatives they will be bound to.
It is important to note that although the amendments to the Act are significant, further potential modernization initiatives to CEPA should be expected in the future.
